U.S. v. Bin Laden

• Decision Date: 05 October 2000
• Docket Number: No. S(7) 98 CR.1023(LBS).,S(7) 98 CR.1023(LBS).
• Citation: 116 F.Supp.2d 489
• Parties: UNITED STATES of America, v. Usama BIN LADEN, a/k/a "Usamah Bin-Muhammad Bin-Ladin," a/k/a "Shaykh Usamah Bin-Ladin," a/k/a "Abu Abdullah," a/k/a "Mujahid Shaykh," a/k/a "Hajj," a/k/a "Abdul Hay," a/k/a "al Qaqa," a/k/a "the Director," a/k/a "the Supervisor," a/k/a "the Contractor," Muhammad Atef, a/k/a "Abu Hafs," a/k/a "Abu Hafs el Masry," a/k/a "Abu Hafs el Masry el Khabir," a/k/a "Taysir," a/k/a "Sheikh Taysir Abdullah," a/k/a "Abu Fatimah," a/k/a "Abu Khadija," Ayman Al Zawahiri, a/k/a "Abdel Muaz," a/k/a "Dr. Ayman al Zawahiri," a/k/a "the Doctor," a/k/a "Nur," a/k/a "Ustaz," a/k/a "Abu Mohammed," a/k/a "Abu Mohammed Nur al-Deen," Mamdouh Mahmud Salim, a/k/a "Abu Hajer al Iraqi," a/k/a "Abu Hajer," Khaled Al Fawwaz, a/k/a "Khaled Abdul Rahman Hamad al Fawwaz," a/k/a "Abu Omar," a/k/a "Hamad," Ali Mohamed, a/k/a "Ali Abdelseoud Mohamed," a/k/a "Abu Omar," a/k/a "Omar," a/k/a "Haydara," a/k/a "Taymour Ali Nasser," a/k/a "Ahmed Bahaa Eldin Mohamed Adam," Wadih El Hage, a/k/a "Abdus Sabbur," a/k/a "Abd al Sabbur," a/k/a "Wadia," a/k/a "Abu Abdullah al Lubnani," a/k/a "Norman," a/k/a "Wa'da Norman," a/k/a "the Manager," a/k/a "Tanzanite," Ibrahim Eidarous, a/k/a "Ibrahim Hussein Abdelhadi Eidarous," a/k/a "Daoud," a/k/a "Abu Abdullah," a/k/a "Ibrahim," Adel Abdel Bary, a/k/a "Adel Mohammed Abdul Almagid Abdel Bary," a/k/a "Abbas," a/k/a "Abu Dia," a/k/a "Adel," Fazul Abdullah Mohammed, a/k/a "Harun," a/k/a "Harun Fazhl," a/k/a "Fazhl Abdullah," a/k/a "Fazhl Khan," Mohamed Sadeek Odeh, a/k/a "Abu Moath," a/k/a "Noureldine," a/k/a "Marwan," a/k/a "Hydar," a/k/a "Abdullbast Awadah," a/k/a "Abdulbasit Awadh Mbarak Assayid," Mohamed Rashed Daoud AL-`Owhali, a/k/a "Khalid Salim Saleh Bin Rashed," a/k/a "Moath," a/k/a "Abdul Jabbar Ali Abdel-Latif," Mustafa Mohamed Fadhil, a/k/a "Mustafa Ali Elbishy," a/k/a "Hussein," a/k/a "Hussein Ali," a/k/a "Khalid," a/k/a "Abu Jihad," Khalfan Khamis Mohamed, a/k/a "Khalfan Khamis," Ahmed Khalfan Ghailani, a/k/a "Fupi," a/k/a "Abubakary Khalfan Ahmed Ghailani," a/k/a "Abubakar Khalfan Ahmed," Fahid Mohammed Ally Msalam, a/k/a "Fahad M. Ally," Sheikh Ahmed Salim Swedan, a/k/a "Sheikh Bahamadi," a/k/a "Ahmed Ally," Defendants.
• Court: U.S. District Court — Southern District of New York

116 F.Supp.2d 489

UNITED STATES of America, v. Usama BIN LADEN, a/k/a "Usamah Bin-Muhammad Bin-Ladin," a/k/a "Shaykh Usamah Bin-Ladin," a/k/a "Abu Abdullah," a/k/a "Mujahid Shaykh," a/k/a "Hajj," a/k/a "Abdul Hay," a/k/a "al Qaqa," a/k/a "the Director," a/k/a "the Supervisor," a/k/a "the Contractor," Muhammad Atef, a/k/a "Abu Hafs," a/k/a "Abu Hafs el Masry," a/k/a "Abu Hafs el Masry el Khabir," a/k/a "Taysir," a/k/a "Sheikh Taysir Abdullah," a/k/a "Abu Fatimah," a/k/a "Abu Khadija," Ayman Al Zawahiri, a/k/a "Abdel Muaz," a/k/a "Dr. Ayman al Zawahiri," a/k/a "the Doctor," a/k/a "Nur," a/k/a "Ustaz," a/k/a "Abu Mohammed," a/k/a "Abu Mohammed Nur al-Deen," Mamdouh Mahmud Salim, a/k/a "Abu Hajer al Iraqi," a/k/a "Abu Hajer," Khaled Al Fawwaz, a/k/a "Khaled Abdul Rahman Hamad al Fawwaz," a/k/a "Abu Omar," a/k/a "Hamad," Ali Mohamed, a/k/a "Ali Abdelseoud Mohamed," a/k/a "Abu Omar," a/k/a "Omar," a/k/a "Haydara," a/k/a "Taymour Ali Nasser," a/k/a "Ahmed Bahaa Eldin Mohamed Adam," Wadih El Hage, a/k/a "Abdus Sabbur," a/k/a "Abd al Sabbur," a/k/a "Wadia," a/k/a "Abu Abdullah al Lubnani," a/k/a "Norman," a/k/a "Wa'da Norman," a/k/a "the Manager," a/k/a "Tanzanite," Ibrahim Eidarous, a/k/a "Ibrahim Hussein Abdelhadi Eidarous," a/k/a "Daoud," a/k/a "Abu Abdullah," a/k/a "Ibrahim," Adel Abdel Bary, a/k/a "Adel Mohammed Abdul Almagid Abdel Bary," a/k/a "Abbas," a/k/a "Abu Dia," a/k/a "Adel," Fazul Abdullah Mohammed, a/k/a "Harun," a/k/a "Harun Fazhl," a/k/a "Fazhl Abdullah," a/k/a "Fazhl Khan," Mohamed Sadeek Odeh, a/k/a "Abu Moath," a/k/a "Noureldine," a/k/a "Marwan," a/k/a "Hydar," a/k/a "Abdullbast Awadah," a/k/a "Abdulbasit Awadh Mbarak Assayid," Mohamed Rashed Daoud AL-`Owhali, a/k/a "Khalid Salim Saleh Bin Rashed," a/k/a "Moath," a/k/a "Abdul Jabbar Ali Abdel-Latif," Mustafa Mohamed Fadhil, a/k/a "Mustafa Ali Elbishy," a/k/a "Hussein," a/k/a "Hussein Ali," a/k/a "Khalid," a/k/a "Abu Jihad," Khalfan Khamis Mohamed, a/k/a "Khalfan Khamis," Ahmed Khalfan Ghailani, a/k/a "Fupi," a/k/a "Abubakary Khalfan Ahmed Ghailani," a/k/a "Abubakar Khalfan Ahmed," Fahid Mohammed Ally Msalam, a/k/a "Fahad M. Ally," Sheikh Ahmed Salim Swedan, a/k/a "Sheikh Bahamadi," a/k/a "Ahmed Ally," Defendants.

No. S(7) 98 CR.1023(LBS).

United States District Court, S.D. New York.

October 5, 2000.

Mary Jo White, United States Attorney for the Southern District of New York, New York City, Kenneth M. Karas, Patrick J. Fitzgerald, Michael J. Garcia, Paul W. Butler, Andrew McCarthy, Assistant United States Attorneys, for U.S Paul J. McAllister, Charles D. Adler, New York City, for Defendant Salim.

James Roth, New York City, for Defendant Mohamed.

Sam A. Schmidt, Joshua L. Dratel, Kristian K. Larsen, New York City, for Defendant El Hage.

Frederick H. Cohn, Laura Gasiorowski, New York City, for Defendant Al-`Owhali.

Jeremy Schneider, David Stern, New York City, for Defendant Khamis Mohamed.

OPINION

SAND, District Judge.

The Defendants are charged with numerous offenses arising out of their alleged participation in an international terrorist organization led by Defendant Usama Bin Laden and that organization's alleged involvement in the August 1998 bombings of the United States Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania. Presently before the Court are Defendant El-Hage's motions (1) to quash any outstanding grand jury subpoenas issued to Farid Adlouni, Khadar Ibrahim, Khalil Zaidan, Mustafa Elnore and Moataz al-Hallak and (2) to suppress, or alternatively, to provide a copy of the grand jury testimony of Moataz al-Hallak. For the reasons set forth below, these motions are denied.

I. Background

A detailed factual background of this case was set forth in the Court's memorandum and order addressing the Defendants' request for a bill of particulars. See United States v. Bin Laden, 92 F.Supp.2d 225, 228 (S.D.N.Y.2000). Because these motions call into question the Government's investigation of this case and its use of the subpoena power of the grand jury, a brief summary of the relevant history is included.

The charges currently pending against each of the defendants in this case arise from their alleged involvement with an international terrorist organization known as "al Qaeda" or "the Base." (See Indictment S(7) 98 Cr. 1023(LBS) ¶ 1.) Since its emergence in 1989, al Qaeda is believed to have planned and financed (both independently and in association with other terrorist groups) numerous violent attacks against United States personnel and property abroad. (See id. ¶¶ 1, 12.) Among other things, the Government alleges that al Qaeda coordinates the activities of its global membership, sends its members to camps for military and intelligence training, obtains and transports weapons and explosives, and explicitly provides Muslims with religious authority for acts of terrorism against American citizens. (See id. ¶ 12.) The United States Attorney's Office in the Southern District of New York has been investigating al Qaeda since at least 1996. (See id. ¶ 72; See also Affirmation of Patrick J. Fitzgerald of Jan. 24, 2000 ¶ 6 (dating the involvement of the United States Attorney's involvement in the investigation to late 1995 or early 1996).) The ongoing grand jury investigation of al Qaeda is characterized by the Government as "long term, expansive and complex." (Government's Memorandum of Law in Opposition to Defendant Wadih El Hage's Motion to Quash Grand Jury Subpoenas at 2.) The Government states that "[i]t involves numerous fugitives and conspirators who remain unidentified to the grand jury" and "continues ... to be wider in scope than even the parameters of the admittedly broad schemes outlined in the most recent indictment." (Id.)

II. Discussion

In his motion, Mr. El-Hage offers alternate bases for Court action: he alleges, first, that the Government is improperly using the grand jury as a trial preparation device and, second, that the Government is attempting to use the power of the grand jury to dissuade these witnesses from testifying favorably for the Defendant. These two charges are reviewed in turn.

A. The Alleged Use of the Grand Jury for Trial Preparation

Numerous cases have restated the proposition that "[i]t is improper to utilize a grand jury for the sole or dominating purpose of preparing an already pending indictment for trial." United States v. Dardi, 330 F.2d 316, 336 (2d Cir.1964) (quoting trial court). See also United States v. Jones, 129 F.3d 718, 723 (2d Cir.1997); United States v. Sasso, 59 F.3d 341, 351 (2d Cir.1995); United States v. Leung, 40 F.3d 577, 581 (2d Cir.1994); United States v. Vanwort, 887 F.2d 375, 387 (2d Cir.1989); In re Grand Jury Subpoena Duces Tecum Dated January 2, 1985 (Simels), 767 F.2d 26, 29 (2d Cir. 1985). A close review of these cases, however, illuminates the limited reach of this well-settled rule. In Leung, the Second Circuit explained that "[b]ecause a presumption of regularity attaches to grand jury proceedings, a defendant seeking to exclude evidence obtained by a post-indictment grand jury subpoena has the burden of showing that the Government's use of the grand jury was improperly motivated." 40 F.3d at 581 (citations omitted). See also United States v. Sasso, 59 F.3d 341, 352 (2d Cir.1995) ("There is a presumption that [a post-indictment] subpoena had a proper purpose."); United States v. Raphael, 786 F.Supp. 355, 358 (S.D.N.Y.1992) ("[A]bsent some indicative sequence of events demonstrating an irregularity, a court has to take at face value the Government's word that the dominant purpose of the grand jury proceedings is proper.").

There appears to be only one Second Circuit case in which the court has quashed a grand jury subpoena.¹ In Simels, the Second Circuit reviewed the subpoena issued to the defendant's attorney which sought documents regarding the attorney's fee arrangement with the defendant. See 767 F.2d 26. The grand jury subpoena was issued to replace a trial subpoena which had requested the same information. For the Simels court, the timing of the grand jury subpoena shed "significant light on its purposes." Id. at 29. Because the grand jury had otherwise been completely inactive during the relevant period, the defendant was able to establish persuasively that trial preparation was the dominant purpose of the government action. Although the Simels court acknowledged the usual difficulty of enforcing the rule prohibiting the improper use of the grand jury, in the face of this set of very clear cut facts, the subpoena was quashed. See id. at 30. The Simels case is easy to distinguish from the rest of this line of cases because the government's improper purpose was patently obvious from the series of events.

In other cases, less compelling forms of circumstantial proof have been dismissed by the court as insufficient evidence of improper government conduct. In United States v. Leung, for example, the defendant alleged that the government's subpoena of her bank records was for the primary purpose of trial preparation. 40 F.3d at 581. The government stated that the subpoenas "were issued as part of a continuing investigation into potential money laundering charges" and was not required to produce any specific proof of the grand jury's purpose. Id. at 581. The Second Circuit indicated that the fact that the grand jury did not subsequently indict other individuals or supersede its indictment of the defendant was not dispositive proof that its investigation was improper. See id. at 581-82. See also United States v. Vanwort, 887 F.2d 375, 387 (2d Cir.1989) (holding that there was "no improper use of the grand jury subpoena" where the government offered a "valid" reason for issuing the subpoena which was that it intended to add additional counts in a superseding indictment); United States v. Jones, 129 F.3d 718, 723 (2d Cir.1997) (indicating that "post-indictment action is permitted to identify or investigate other individuals involved in criminal schemes or to...